On November 18, 2024, the Council of the European Union published its new Directive on Liability for Defective Products. The directive will go into force on December 8, 2024. Member states will then have two years – until December 9, 2026 – to adopt it into law. It applies to products that are placed in the market or put into operation after the expiration of the implementation period.

The directive is part of a group of measures designed to harmonize liability rules for artificial intelligence ("AI") and also extends to digital products such as digital design documents and software, including AI systems. The developers and manufacturers of software, including providers of AI systems, are considered “manufacturers” under the directive. Thus, they can be liable for damages resulting from the use of AI systems. Privity of contract between the software manufacturer and the claimant is not required – a very American product liability concept.

Additional “Americanization” of product liability law under the directive is seen in its enhancement of the protection of injured persons and increasing the liability risks for manufacturers. The scope of potential defendants is expanded, and comprehensive disclosure requirements are now incumbent on the defendant companies, enabling injured parties to better substantiate their claims.

An excellent summary of the directive is in the link found in this article. Over the next two years, those of us practicing in the product liability space will be monitoring the developments in the EU as they appear to be moving toward the mirroring of American product liability law.